NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 5, 2011
Decided December 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVER, Circuit Judge
No. 11‐1461
JOSE CAHUE, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A 070‐421‐514
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
O R D E R
Jose Cahue, a Mexican citizen, petitioned the Board of Immigration Appeals to
reopen proceedings that have led to his removal from the United States. The Board refused,
and Cahue asks us to review that decision. Only one of the contentions he makes in this
court falls within the scope of our subject‐matter jurisdiction, and that argument lacks merit.
Accordingly, we deny the petition for review.
Cahue first entered the United States illegally in 1988, when he was 16 years old.
Several years later he was arrested in Illinois with a small amount of cocaine and charged
with simple possession. See 720 ILCS 570/402(c). Instead of resolving the criminal case he
returned to Mexico, though he came back after a few months. That was in 1992, but Illinois
No. 11‐1461 Page 2
authorities were not aware of his return until he was arrested for disorderly conduct in
1994. Two weeks later he pleaded guilty to the drug charge and was sentenced to probation.
Cahue later married a United States citizen, and together they have three children.
In 2007 the Department of Homeland Security caught up with Cahue and issued a
Notice to Appear. Immigration authorities charged that he was removable because he was
in the United States illegally,
8 U.S.C. § 1182(a)(6)(A)(i), and also because he had been
convicted of a crime “relating to a controlled substance,”
id. § 1182(a)(2)(A)(i)(II). When
Cahue appeared before an immigration judge, he conceded that he was removable but
applied for cancellation of removal. One eligibility criterion, however, is that he not have a
conviction for a crime relating to a controlled substance. See id. § 1229b(b)(1); Marin‐Garcia v.
Holder,
647 F.3d 666, 669 (7th Cir. 2011). Cahue therefore conceded he was subject to
removal because he was in the United States illegally, but he argued that his cocaine offense
had not resulted in a conviction for a crime “relating to a controlled substance” and thus
could not justify removal or foreclose cancellation of removal. The immigration judge
rejected Cahue’s understanding of his conviction, as did the Board of Immigration Appeals.
The Board’s ruling came in June 2010, but at that point Cahue did not seek judicial
review. Instead he did nothing for seven months until, on January 14, 2011, he filed a
motion asking the Board to reopen the removal proceedings under
8 C.F.R. § 1003.2(c)(1).
Cahue explained that, the previous day, he had filed a postconviction petition in Illinois
state court challenging his 1994 conviction on the basis of Padilla v. Kentucky,
130 S. Ct. 1473
(2010), which holds that a defense lawyer must tell his client whether a guilty plea carries a
risk of deportation. According to Cahue, his lawyer in the criminal case “never advised” or
perhaps (as Cahue says elsewhere in the same motion) “affirmatively misadvised” him
about the effect a conviction would have on his immigration status. Although Padilla was
not decided until 2010, Cahue insisted in his motion to reopen that the rule announced in
that decision applies retroactively and thus governed at the time of his 1994 conviction.
Cahue did not say explicitly why the Board should reopen the removal proceedings, but
presumably his goal was to forestall being ejected from the United States until the state
court could rule on his postconviction petition and (Cahue presumed) vacate his conviction.
As far as we are told, however, Cahue’s postconviction petition is still pending in state
court, and Cahue has been removed to Mexico.
The Board denied Cahue’s motion to reopen in February 2011. After acknowledging
that Cahue had filed a postconviction petition, the Board concluded that “the ruling in
Padilla does not change the finality of the respondent’s conviction for immigration purposes,
unless and until it is overturned by a criminal court.” Cahue has now petitioned for review
in this court. He filed too late to challenge the Board’s underlying decision from June 2010,
No. 11‐1461 Page 3
and instead his petition for review is timely only as to the February 2011 denial of his
motion to reopen. See Victor v. Holder,
616 F.3d 705, 708 (7th Cir. 2010).
Our review of the latter decision, as a practical matter, is academic. As we have
noted, Cahue wanted the removal proceedings reopened so that he could get his 1994 drug
conviction overturned on the understanding that Padilla applies retroactively. After briefing
was complete, however, we held that Padilla announced a new rule that does not apply
retroactively to prosecutions that already were final. Chaidez v. United States,
655 F.3d 684,
686 (7th Cir. 2011), rev’g United States v. Chaidez,
730 F. Supp. 2d 896 (N.D. Ill. 2010); accord
United States v. Chang Hong, No. 10‐6294,
2011 WL 3805763, at *1 (10th Cir. Aug. 30, 2011);
contra United States v. Orocio,
645 F.3d 630, 641 (3d Cir. 2011). As a result, the ineffective‐
assistance claim on which Cahue’s postconviction petition is premised cannot succeed in
undermining his drug conviction, and yet a belief that the conviction will be overturned is
the sole basis for Cahue’s motion to reopen. Our decision in Chaidez makes evident that the
state court has not been presented with a meritorious federal claim, and at oral argument
counsel for Cahue conceded that his postconviction petition does not present an alternative
basis under Illinois law for setting aside his conviction. It would be pointless, then, to force
the Board to take a fresh look at the matter.1
1
Even apart from Chaidez, Cahue’s postconviction petition faces significant obstacles.
Cahue presumes that Padilla compels a finding that his lawyer’s performance was deficient,
but on what basis? Cahue was subject to removal whether or not he pleaded guilty to the
drug charge, since he was in the United States illegally. In contrast, the petitioner in Padilla
was a lawful permanent resident whose lawyer misadvised him about the deportation
consequences of pleading guilty to a drug crime, which meant that his guilty plea was the
reason he became subject to removal.
130 S. Ct. at 1477–78. After Padilla a lawyer is required
to advise the defendant “whether his plea carries a risk of deportation,”
130 S. Ct. at 1486,
but for Cahue that risk existed independently of his guilty plea. And when he entered that
plea in 1994, Cahue was not even eligible for cancellation of removal because he had most
recently returned to the United States only two years earlier. See 8 U.S.C. § 1229b(b)(1)
(listing eligibility criteria for cancellation of removal, including that alien has been in the
United States continuously for at least 10 years). Cahue’s lawyer was deficient, then, only if
a court applying Padilla could conclude that counsel should have warned Cahue that eight
years in the future his guilty plea would make him ineligible for cancellation of removal if,
despite being in the United States illegally, he managed to maintain a continuous presence
for that lengthy period. That seems a stretch. What is more, a finding that Cahue’s counsel
provided deficient performance would satisfy only the first of the two elements needed to
establish ineffective assistance of counsel. Cahue would also be required to establish
(continued...)
No. 11‐1461 Page 4
Not that there is any legal basis for upsetting the Board’s decision. The Board
concluded that Cahue was subject to removal because his 1994 conviction is for a crime
relating to a controlled substance, so we have jurisdiction to review the ruling on his motion
to reopen only to the extent that Cahue presents us with a constitutional claim or question
of law. See
8 U.S.C. § 1252(a)(2)(C), (D); Torres‐Tristan v. Holder,
656 F.3d 653, 658 (7th Cir.
2011); Aguilar‐Mejia v. Holder,
616 F.3d 699, 703 (7th Cir. 2010); Freeman v. Holder,
596 F.3d
952, 956 & n.2 (8th Cir. 2010); Zamora‐Mallari v. Mukaskey,
514 F.3d 679, 694 (7th Cir. 2008).
And even apart from Cahue’s drug conviction, our jurisdiction would be limited in the
same manner because he is challenging the denial of a request under 8 U.S.C. § 1229b(b)(1)
for cancellation of removal. See
8 U.S.C. § 1252(a)(2)(B)(i); Marin‐Garcia,
647 F.3d at 671.
When our jurisdiction is restricted to constitutional claims and questions of law, we may not
examine the Board’s factual findings, the reasons the Board gave in exercising discretion to
deny a motion to reopen, or the discretionary decision itself. See Khan v. Flip,
554 F.3d 681,
688 (7th Cir. 2009); Jezierski v. Mukasey,
543 F.3d 886, 888 (7th Cir. 2008); Huang v. Mukaskey,
534 F.3d 618, 620 (7th Cir. 2008). We have recognized, however, that a contention that the
Board “completely ignored the evidence put forth by a petitioner is an allegation of legal
error.” Iglesias v. Mukasey,
540 F.3d 528, 531 (7th Cir. 2008); see Kiorkis v. Holder,
634 F.3d 924,
928 (7th Cir. 2011) (evaluating claims that Board completely ignored petitioner’s specific
arguments). This understanding derives from our recognition that the Board commits legal
error when it fails to exercise its discretion at all. See, e.g., Patel v. Holder,
563 F.3d 565, 568
(7th Cir. 2009); Huang,
534 F.3d at 620.
Cahue slips through this narrow jurisdictional window by asserting that, in denying
his motion to reopen, the Board ignored the existence of the postconviction petition he filed
in state court. Yet this contention lacks credence. The Board explicitly acknowledged that
Cahue had a “petition for post‐conviction relief” pending in state court but concluded that
his drug conviction would still remain final for immigration purposes unless and until it is
overturned. In Iglesias we found legal error because the Board’s decision did not “even
mention” the petitioner’s substantial evidence,
540 F.3d at 532, but here the Board did
confront the lone piece of evidence that Cahue submitted. The situation before us thus
parallels Kiorkis, where the record demonstrated that the immigration courts had not
ignored evidence or the petitioner’s claims. 634 F.3d at 929–30. And though Cahue does not
contest the Board’s position that Padilla leaves intact the rule that a criminal conviction
remains final for immigration purposes unless set aside judicially, we note there is ample
precedent for that rule in the decisions of the courts and the Board. See Jimenez‐Guzman v.
1
(...continued)
prejudice. See Hill v. Lockhart,
474 U.S. 52, 58–59 (1985); Payne v. Brown, No. 10‐1869,
2011
WL 5505331, at *2 (7th Cir. Nov. 10, 2011).
No. 11‐1461 Page 5
Holder,
642 F.3d 1294, 1297 (10th Cir. 2011); Ghani v. Holder,
557 F.3d 836, 839 (7th Cir. 2009);
Paredes v. Attorney Gen. of the U.S.,
528 F.3d 196, 198–99 (3d Cir. 2008); United States v.
Garcia‐Echaverria,
374 F.3d 440, 445–46 (6th Cir. 2004); Okabe v. INS,
671 F.2d 863, 865 (5th
Cir. 1982); Matter of Madrigal‐Calvo,
21 I. & N. Dec. 323, 327 (BIA 1996); In re Ponce De Leon‐
Ruiz,
21 I. & N. Dec. 154, 156‐57 (BIA 1996); see also Waugh v. Holder,
642 F.3d. 1279, 1284
(10th Cir. 2011) (stating that Padilla does not disturb rule).
The rest of Cahue’s arguments are neither constitutional nor legal and thus fall
outside our jurisdiction. He contends that the Board should have deemed his postconviction
petition to be new and material evidence warranting the reopening of his case; indeed, he
goes so far as to suggest that the Board was obliged to assess his likelihood of success in
state court before rejecting his motion to reopen. But this line of argument asks us to review
the manner in which the Board weighed factors affecting its exercise of discretion, and that
we cannot do. No matter whether the Board did or might have characterized Cahue’s
postconviction petition as new and material evidence, the Board still retained discretion to
deny his motion to reopen. See
8 C.F.R. § 1003.2(a); Waugh,
642 F.3d at 1284–85 (petitioner’s
contention that Board had erred in refusing to stay removal proceedings while he
collaterally attacked conviction was in fact a challenge to Board’s exercise of discretion and
outside jurisdiction of court of appeals). Cahue cannot expand our jurisdiction by seeking to
pass off as a legal question what is obviously a disagreement with the Board’s exercise of
discretion. See Khan,
554 F.3d at 689. Accordingly, the petition for review is DENIED.
